Sears v. Flodstrom

• Decision Date: 18 May 1897
• Citation: 49 P. 11,5 Idaho 314
• Parties: SEARS v. FLODSTROM
• Court: Idaho Supreme Court

49 P. 11

5 Idaho 314

SEARS v. FLODSTROM

Supreme Court of Idaho

May 18, 1897

CONFLICTING EVIDENCE-FINDING OF JURY.-Where the sole question in a case is one of fact, and the evidence is conflicting, the finding of the jury will not be disturbed.

ORIGINAL PROMISE TO PAY FOR GOODS FURNISHED ANOTHER-NOT WITHIN STATUTE OF FRAUDS.-Defendant was proprietor of a meat market. Plaintiff was owner of a boarding-house, which he rented to a tenant, who was a woman and a stranger to plaintiff. Defendant introduced his tenant to plaintiff and requested him to let her have such meats as she required and charge the same to him. Held, that defendant was liable for balance of account for meats so delivered to the tenant of defendant the promise being an original one, and not within the statute of frauds.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

Affirmed, with costs.

W. W Woods and A. G. Kerns, for Appellant.

The complaint alleges that appellant is indebted for meats sold and furnished to him. All the evidence shows that the meats were sold and delivered to one Betsy Johnson, who was running what is known as the "Flodstrom Boarding-house." The only evidence attempted to connect appellant with liability for the account is the testimony of respondent that about a year prior to the commencement of the account sued upon appellant remarked to respondent, on introducing Betsy Johnson to him: "Give her all the meat she wants; she will have charge of the house down there." There was no attempt to show a consideration upon the part of appellant to become responsible for the meats, and at best the evidence of respondent only tended to show that appellant was held as a mere guarantor, which brings the case within the statute of frauds. (Clay v. Walton, 9 Cal. 329; Harris v Frank, 81 Cal. 280, 22 P. 856; Fisher v. Salmon, 1 Cal. 413, 54 Am. Dec. 297; Comstock v. Breed, 12 Cal. 286; 2 Parsons on Contracts, 5th ed., p. 11.)

Henry F. Samuels, for Respondent.

Anson, in his work on Contracts, second American edition by Knowlton, marginal page 59, thus illustrates: "If two come to a shop, and one buys, and the other, to gain him credit, promises the seller 'if he does not pay you I will,' this is a collateral undertaking and void without writing by the statute of frauds. But if he says, 'Let him have the goods, and I will be your paymaster,' or 'I will see you paid,' this is an undertaking as for himself, and he shall be intended to be the very buyer and the other to act as but his servant." To the same effect, Clark on Contracts, 96, and note. The question whether the contract testified to by the plaintiff was one of original promise, or one of guaranty, was, as it should have been, submitted to the jury under proper instructions, as it was strictly a question of fact for the jury, and for the purpose of this case their verdict settled it. (8 Am. & Eng. Ency. of Law, 679; Harris v. Frank, 81 Cal. 280, 22 P. 856, 858; Dean v. Tallman, 105 Mass. 443; Cowdin v. Gottgetrue, 55 N.Y. 650; Moshier v. Kitchell, 87 Ill. 18.) But for the sake of the argument we may grant that the evidence upon the question as to whether there was a contract or original promise or not was conflicting, still the verdict of the jury will not be disturbed. (Murphy v. Montandon, 4 Idaho 320, 39 P. 195; O'Connor v. Langdon, 2 Idaho 61, 26 P. 559; Chamberlain v. Woodin, 2 Idaho 642, 23 P. 177.)

HUSTON J., QUARLES, J. Sullivan, C. J., Quarles, J., and Huston, J., concurring.

OPINION

HUSTON, J.

This is an action commenced in justice's court for the recovery of a balance of account claimed to be due from the defendant to plaintiff. The plaintiff recovered in the justice's court. An appeal was taken by the defendant to the district court, where the case was tried de novo to a jury, and the plaintiff again recovered. From the latter judgment, as well as from the order of the district court denying a new trial, this appeal is taken.

The facts may be briefly summarized as follows: The plaintiff in 1890 was running a meat market in the town of Gem, Shoshone county, Idaho for the firm of Barger & Sears. At this time the defendant was the owner of a miners' boarding-house in the said town, but was himself employed in the mines, and was renting his boarding-house to different persons--it would seem mostly, if not...